Friday, March 18, 2011

European Court's Grand Chamber Upholds Italy's Placement of Crucifixes In State Schools

Today in a 15-2 ruling, the Grand Chamber of the European Court of Human Rights held that the required display of crucifixes in state school classrooms in Italy does not violate the European Convention on Human Rights. InCase of Lautsi and Others v. Italy,(ECHR, March 18, 2011), the European Court reversed a Chamber Judgment issued by a 7-judge panel of the Court in November 2009 that had found the practice violates Article 2 of Protocol No. 1 taken together with Article 9 of the European Convention on Human Rights. (See prior posting.) In today's Grand Chamber judgment, the majority said in part:

[I]t is true that by prescribing the presence of crucifixes in State-school classrooms – a sign which, whether or not it is accorded in addition a secular symbolic value, undoubtedly refers to Christianity – the regulations confer on the country's majority religion preponderant visibility in the school environment.

That is not in itself sufficient, however, to denote a process of indoctrination on the respondent State's part and establish a breach of the requirements of Article 2 of Protocol No. 1.... [A] crucifix on a wall is an essentially passive symbol and this point is of importance in the Court's view, particularly having regard to the principle of neutrality.... It cannot be deemed to have an influence on pupils comparable to that of didactic speech or participation in religious activities.... [T]he presence of crucifixes is not associated with compulsory teaching about Christianity....

Italy opens up the school environment in parallel to other religions.... [I]t was not forbidden for pupils to wear Islamic headscarves or other symbols or apparel having a religious connotation; alternative arrangements were possible to help schooling fit in with non-majority religious practices; the beginning and end of Ramadan were "often celebrated" in schools; and optional religious education could be organised in schools for "all recognised religious creeds" .... Moreover, there was nothing to suggest that the authorities were intolerant of pupils who believed in other religions, were non-believers or who held non-religious philosophical convictions.

In addition, the applicants did not assert that the presence of the crucifix in classrooms had encouraged the development of teaching practices with a proselytising tendency.... [A]pplicant retained in full her right as a parent to enlighten and advise her children... and to guide them on a path in line with her own philosophical convictions....

Three concurring opinions were filed. In one of them, Judge Bonello wrote:

A court of human rights cannot allow itself to suffer from historical Alzheimer's. It has no right to disregard the cultural continuum of a nation's flow through time, nor to ignore what, over the centuries, has served to mould and define the profile of a people. No supranational court has any business substituting its own ethical mock-ups for those qualities that history has imprinted on the national identity.... A European court should not be called upon to bankrupt centuries of European tradition. No court, certainly not this Court, should rob the Italians of part of their cultural personality.

A dissenting opinion by Judge Malinverni, joined by Judge Kalaydjieva, argued in part:

[T]he presence of the crucifix in classrooms goes well beyond the use of symbols in particular historical contexts.... [N]egative freedom of religion is not restricted to the absence of religious services or religious education. It also extends to symbols expressing a belief or a religion. That negative right deserves special protection if it is the State which displays a religious symbol and dissenters are placed in a situation from which they cannot extract themselves. Even if it is accepted that the crucifix can have multiple meanings, the religious meaning still remains the predominant one. In the context of state education it is necessarily perceived as an integral part of the school environment and may even be considered as a powerful external symbol.